Special argumentation of fundamental rights: a new model thirty years after the 1991 Constitution

Abstract

The application of law in times of the legal system and Constitutional State of Law, revolves around the possibility of finding an answer that not only satisfies the needs of the specific case, but that is also of the procedural subjects or direct recipients who intervene in it. The judicial decision in terms of this constitutional perspective should be much more <<ambitious>> and <<generous>>, in the sense that it is directly connected with the principle of justice, and the relationship between democracy and fundamental rights. For this to be achieved, regardless of what type of legal system we are in, or what order, the judges must apply the law. The question we intend to answer is going to ask the same, although rethought in postmodern times. How does the judicial decision satisfy higher postulates of the legal system and order, based on a decisional margin that includes most recipients? In this article we try to show theoretically, and in summary form, that there is a special model of fundamental rights that answers this question. As a partial conclusion, we show that the solutions to the lack of decisional coherence in the decisions of our judges are due to the lack of exploration of the discursive phases of the judicial decision as necessary and non-contingent relationships between constitutional hermeneutics and fundamental arguments.